Aaron Twerski, the first chassidic, "ultra-Orthodox" dean of a US law school

Prof. Twerski has written about Agent Orange, product liability including toxic torts, causation, consumer injury,and tort reform. Excerpts from his legal writings -- see the 1st comment -- show that Prof. Twerski cares about toxicality and corporate ethics. Plus, one Jewish joke. These excerpts may not be easy for non-lawyers, but they prove Dean Twerski’s familiarity with toxic products and poisoning. Enjoy. And.... mazal tov, Dean Twerski.

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Prof. Twerski
has written about Agent Orange, product liability including toxic torts,
causation, consumer injury,and
tort reform. Excerpted below are some of law
review writings that pertain to toxicality and
corporate ethics. Plus, one Jewish joke. The
excerpts won’t be easy for non-lawyers, but they prove Dean Twerski’s
familiarity with toxic product and pollution concerns. Let’s start with his
essay on Agent Orange:

“The Agent Orange litigation began in early 1979
when several individual veterans and their families commenced actions against
the United States
and the chemical companies that supplied the military with the herbicide
"Agent Orange." This herbicide was used by the military to defoliate
the jungles in Vietnam
so that the Viet Cong could not hide and ambush American and South Vietnamese
troops. Barrels of the herbicide were marked by the chemical companies with an
orange stripe -- hence the name Agent Orange.

The complaint alleged that Agent Orange was contaminated with the highly
toxic by-product 2, 3, 7, 8 tetrachlorodibenzo-p-dioxin
(TCDD or dioxin). The plaintiffs alleged causes of action in
negligence, strict liability, breach of warranty,
intentional tort and nuisance. These causes of action were tied to each of the
three product liability categories: production defect, design defect and
failure to warn. According to the plaintiffs, the veterans' exposure to the
TCDD contaminated herbicides in Vietnam resulted in a host of injuries, such as
chloracne, and various systemic diseases including
soft tissue sarcoma and prophyria cutanea
tarda. The plaintiffs also claimed that exposure
resulted in miscarriages to their wives and birth defects in their children.”

…. Since all defendants had some dioxin in their Agent
Orange, the manufacturers of the more highly contaminated herbicide had a duty
to warn that using their highly contaminated product with other lesser
contaminated products would make the others more dangerous.

There was yet another dimension to this argument based on classic failure to
warn decisions. Not only was the commingling of the Agent Orange in question in
this case, but the cumulative effect of the various dose levels of the Agent
Orange that were sprayed in Vietnam were at issue as well. If the
defendants knew that their dose levels differed drastically, they had a duty to
warn about the inappropriateness of use in an environment where such varying
dose levels existed.

… The plaintiffs argued that the following facts suggested
that the government had a right to expect the defendants to come forward with
information concerning the products of other companies that defendants knew to
be seriously contaminated with dioxin: 1) The special expertise of several with
regard to testing for dioxin. This technique was available to the defendants
and not to the government. 2) The knowledge to substantial certainty that the
products of the others would be intermingled and sprayed as if they were
fungible. The defendants knew that the products were different in that they
contained varying amounts of dioxin. The government did not know and treated
all the Agent Orange as fungible. 3) The unprecedented exposure of hundreds of
thousands of soliders to the dioxin hazard. This was
the largest spraying of herbicides in the history of mankind. 4) The
"take charge" attitude of Dow and other defendants with regard to
the information that was to be disseminated and the attempt to jealously guard
it from public view.

The implication for the causation issue is obvious. By hypothesis, the breach
of the duty to inform the government was specifically directed to the highly
toxic product of all co-defendants. The very product that caused the harm was
allowed to be deployed because the defendants failed to warn not only of the
dangers indigenous to their own products but also of dangers inherent in the
products the entire industry was selling.

The defendants' response to this argument followed their responses as discussed
earlier. They contended that no independent duty to warn of industry-wide
problems has ever been recognized short of conspiracy or enterprise
liability. ….”

Source: ESSAY: WITH LIBERTY AND JUSTICE
FOR ALL: AN ESSAY ON AGENT ORANGE
AND CHOICE OF LAW. 52 Brooklyn L. Rev. 341

“Blankenship v. Cincinnati Milacron Chemical, Inc. illustrates the very
high cost of failing to identify and value the range of options denied
plaintiffs. In that case, eight former employees of Milacron sued their
employer for subjecting them to noxious chemical fumes which caused them
injury. The plaintiffs alleged that the defendant, though it had knowledge
that the situation existed, "failed to correct said conditions, failed to
warn appellants-employees of the dangers and conditions that existed and failed
to report said conditions to the various state and federal agencies to which
they were required to report by law."

Notwithstanding the seriousness of the allegations, the trial court dismissed
plaintiffs' actions because workers' compensation covered the employer, and
thus immunized the employer from tort liability. On appeal the Ohio Supreme
Court noted the allegations that Milacron had intentionally failed to warn its
employees of the dangers of the toxic chemicals. The court held that the Ohio
Legislature did not intend the Ohio
worker compensation statute to immunize employers from intentionally tortious conduct, and thus, recognized a common law right
to tort recovery. In a sharp partial dissent, Justice Locher
took issue with the majority's intentional tort analysis. He argued that if the
employer did not act with "knowledge to substantial certainty" that
harm would result, then mere knowledge on the part of the employer that it was
subjecting plaintiffs to a risk of harm did not constitute an intentional
tort. Source: 1988 U. Ill. L.
Rev. 607 INFORMED DECISION MAKING AND THE LAW OF TORTS: THE MYTH OF JUSTICIABLE
CAUSATION w/ Neil Cohen

“This essay first sets forth the causation principles that
govern tort cases generally and shows how products liability causation issues
fit within this broader context. It then focuses on the special way causation
principles play out in product design litigation. [We favor…] a risk-utility test
that asks whether a safer, reasonable alternative design could have been
adopted that would have prevented plaintiff's harm. Under the risk-utility
test, the "would have prevented" aspect, missing from consumer
expectations, introduces an important element of but-for proximate causation
that, relying on technology rather than intuition, plays an important role in
constraining design-based liability.” Source: 88 Geo. L.J. 659 ESSAY: Intuition
and Technology in Product Design Litigation: An Essay on Proximate Causation

“I said at the beginning of this [Restatement of law]
project that we would be vilified, not for what we said, but because we said
it. There is a Jewish joke about an orthodox Jew whose wife once wanted
to eat ham. He felt guilty about it and walked into a delicatessen. He pointed
to a piece of ham on the counter and he told the clerk, he said, "Give me
a piece of that." He says, "You mean the ham, sir?" He said,
"Who asked you to name it?" Our sin was not that we created new law,
but that we clearly identified the law that was there. That, and in many areas,
in a whole lot of areas, moved the law up and in favor of consumers in very
significant ways and opened lots of doors. We are fiercely proud of our work.” Source:
10 Kan.
J.L. & Pub. Pol'y 55

26 Hofstra L. Rev. 667 SYMPOSIUM ON THE
AMERICAN LAW INSTITUTE: PROCESS, PARTISANSHIP, AND THE RESTATEMENTS OF LAW: THE
POLITICS OF THE PRODUCTS LIABILITY RESTATEMENT
with James A. Henderson, Jr.

“The charge that the Products Restatement constitutes the
ALI equivalent of "tort reform" legislation is simply ludicrous.
Consider the following positions that the Products Restatement takes that have
been strongly opposed by business and manufacturing interests. …

C. Reasonable Design Rather than Warnings Is Necessary for Optimal Product
Safety

….This position illegitimately gives primacy to the role
of warnings. It allows a defendant to escape liability for inadequate design by
simply warning against risks. The Products Restatement rejects this primitive
notion decisively. Section 2, comment l provides:

Reasonable designs and instructions or warnings both play
important roles in the production and distribution of reasonably safe products.
In general, when a safer design can reasonably be implemented and risks can
reasonably be designed out of a product, adoption of the safer design is
required over a warning that leaves a significant residuum of such risks.
For example, instructions and warnings may be ineffective because users of the
product may not be adequately reached, may be likely to be inattentive, or may
be insufficiently motivated to follow the instructions or heed the warnings... n59 …

E. Compliance with Statute Does Not Create a Presumption
of Non-Defectiveness

”…. The Products Restatement adopts the traditional view and rejects the
position that compliance with a statute or regulation creates a formal
presumption of non-defectiveness. Furthermore, the Products Restatement takes
the position that a product that is in violation of a governmental standard is
defective per se and that there exists no "justifiable excuse"
defense for violating a governmental safety standard.”

Note: These excerpts were drawn from Lexis-Nexis.
Hopefully this non-commercial post is covered by fair use of the copyrighted
materials.

Dean Twerski,
Congrats, late, on the Hofstra Dean job. Tried to get your "Rethinking Self-worth in the Context of Recession" online. Couldn't. help? Much interest in last 10 years in lessons from Holocaust.

Tom Wickwire,
A Goyum from St Louis who went East. Hofstra 1967; B.L.S. 1969. Nearing 40 years of Lawyer ing in Fairbanks, Alaska. Still going at plaintiff civil litigation full time, but will find time to read your stuff.